Gerard Baden-Clay denied bail

Amy Remeikis

Gerard Baden-Clay has been denied bail after his defence team claimed an examination of the Crown's murder case against the accused wife killer showed a "good, if not better case" that Allison Baden-Clay committed suicide.

After an adjournment, Supreme Court Justice Peter Applegarth began his judgement by reviewing the reasons behind Justice David Boddice's decision on June 22 to refuse bail.

Gerard Baden-Clay at the funeral of his wife, Allison. Photo: Michelle Smith

He then went through the change in circumstances alleged by the defence - they now had the Crown brief of evidence, the Crown case was substantially weaker than what had been presented in June and that there was a "real alternative to the Crown theory", that being that Mrs Baden-Clay committed suicide.

However, Justice Applegarth said the Crown submitted there had been no material change in circumstances and its case, on balance, was still strong and had not been weakened.

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Turning to the suicide theory, Justice Applegarth said the defence had pointed to the high levels of Zoloft found in Mrs Baden-Clay's system.

However, Justice Applegarth said the autopsy report also stated that confirming the levels of the prescrition drug was difficult, as they were only judging it from stomach contents and blood taken from the liver.

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He said the report's authors had written of concern about not being able to take blood from other areas to more accurately judge the levels of the prescription drug's active ingredients, due to the level of decomposition.

They concluded there was insufficient evidence to find a cause of death, although drug toxicity could not be ruled out.

Justice Applegarth said the report went on to detail a number of possible causes of death, including strangulation or smothering, which may have caused soft tissue damage, which was possibly masked by decomposition.

"The autopsy report identified a number of possible causes of death," Justice Applegarth said.

He said while it was obvious the applicant and Mrs Baden-Clay were in a difficult relationship, which had been documented in Mrs Baden-Clay's journal, there was no evidence she had threatened to take her own life.

"The journal supports that the deceased had concerns ... and the prospect of being left to fend for herself and her loneliness is documented in her handwriting, in her journal," Justice Applegarth said, adding there was no entry indicating she was considering suicide.

He said the defence's theory that Mrs Baden-Clay had resolved to take her own life, taken an overdose of her prescription medication and walked 14 kilometres to where her body was eventually found (while also allowing for her to have hitched a lift) could not be put any higher than a possibility.

Justice Applegarth said he believed there was very limited evidence to support the suicide theory and spoke of the Crown's evidence of the blood found in the car, which had Mrs Baden-Clay's DNA, and the plant expert who had identified six species of plant on Mrs Baden-Clay, only two of which were located in the area around the creek where she was found.

However, Justice Applegarth said the Crown's contention that Mrs Baden-Clay was killed late on April 19 or the early hours of April 20 had been put in doubt by evidence that the 43-year-old's phone's internet service was engaged at 6.21am on April 20 and remained on for 13 hours.

Justive Applegarth said the evidence pointed to the phone being in the Fig Tree Pocket area, far away from Mr Baden-Clay.

However, the phone has never been located.

Justice Applegarth said he did not think the witness who thought he saw a woman matching Mrs Baden-Clay's description walking along Boscombe Road about 5.50am on April 20 significantly altered Crown case.

He pointed to the difference in clothing description to what Mrs Baden-Clay had been wearing when she was found - a T-shirt compared to a singlet and cardigan.

Justice Applegarth said there had been questions over the Baden-Clays' financial circumstances and the situation may not have been as dire as first thought.

He said what was important was that Mr Baden-Clay "apprehended" that he needed $300,000 to pay some business partners by June 30, 2012.

The Crown had submitted evidence that Mr Baden-Clay had approached many family members and friends for a loan from December, 2011.

One of those friends told police she remembered speaking to a "very distressed" Mr Baden-Clay when she called to ask for a loan.

Justice Applegarth said her evidence was that she recalled Mr Baden-Clay was upset and told investigators: "Gerard was very emotional and sounded distressed, he was crying when he answered the call, said it was his last opportunity and he needed a loan."

Justice Applegarth said if it turned out the $300,000 owed was not payable, or if another arrangement such as a transfer of shares could have been made, "the applicant thought it was and apprehended he was in a desperate financial state".

In summing up, Justice Applegarth said he did not believe there to have been a material change in the circumstances surrounding the case, taking the defence submissions either individually or collectively.

He said while there had been some changes, the evidence relied upon by the Crown had not significantly changed and he was not persuaded there had been a materiial change of circumstances.

Justice Applegarth said he believed the Crown to have a "reasonably strong case", adding "it's certainly not a weak one" and said that it was an important factor when considering the risk of the applicant taking flights.

The application for bail was denied.

Earlier

Defence barrister Peter Davis, SC, told Justice Applegarth that evidence had come to light since his client had first applied for bail in June, which could help "form the notion" that Mrs Baden-Clay had taken her own life.

"There is a solid hypothesis in this case consistent with innocence, which is that Mrs Baden-Clay committed suicide," Mr Davis said.

But prosecutor Danny Boyle said the crown's murder case against Mr Baden-Clay remained strong.

Mr Boyle said he did not believe the autopsy report bore out the defence's theory.

"At the end of the day, the cause of death is undetermined," he said.

"There are many causes of death and many possible causes of death that can't be ruled out."

Mr Boyle said during an interview Mr Baden-Clay gave to police before his arrest, the accused told investigators he and his wife had been seeing a marriage counsellor, the most recent appointment having been the Monday before Mrs Baden-Clay's disappearance, who had suggested the couple set aside 15 minutes a night to discuss Mr Baden-Clay's adultery.

He told police the couple had followed the marriage counsellor's suggestion and had spent time on April 19 discussing Mr Baden-Clay's affair, but Mr Boyle said Mr Baden-Clay had given no indication his wife was suicidal at the end of it and instead, spoke about how the conversation ended amicably and the pair had begun discussing their plans for the following day.

"At no stage does he suggest Mrs Baden-Clay was suicidal," Mr Boyle said.

Significant new piece of information

In arguing against the suicide theory, Mr Boyle said the crown also had new evidence which he believed showed Mrs Baden-Clay's body was moved to the area near Kholo Creek where it had been found.

He said an expert had identified six species of plant on Mrs Baden-Clay's body, clothes and hair, only two of which were found in the area where she was found.

But he said all six had been identified in the area surrounding Mrs Baden-Clay's Brookfield Road home and patio.

"That is consistent [with the Crown's theory] with being moved from the house after death and then being placed in the area near Kholo Creek...it flies in the face if the suicide theory.

The history

Allison Baden-Clay was reported missing by her husband, Gerard on April 20. He told police he had last seen her at 10pm the night before watching television while he went to bed and woke up to find her missing.

Mrs Baden-Clay's body was found on April 30 by a canoeist near Kholo Creek, 14 kilometres from the Brookfield home she shared with her husband.

Mr Baden-Clay was arrested on June 13 and charged with his wife's murder.

Changed circumstances

Mr Davis said when his client first applied for bail on June 22, an application which was rejected by Justice David Boddice, the toxicology report on Mrs Baden-Clay had not yet been completed.

He said the completion of that report had changed the circumstances surrounding his client's case.

While Mr Davis admitted forensic medical examiners had been unable to find an exact cause of death, he said the toxicology report had noted the anti-depression drug, Zoloft was found in her system.

Mr Davis described the levels of the prescription drug found in Mrs Baden-Clay as "fatal" and said while pathologists could not rule drug toxicity caused his client's wife death, they could not rule it out.

Suicide theory

Mr Davis asked the court to consider the marital problems Allison Baden-Clay was having with her husband, who is alleged to have been having an affair with Toni McHugh, a work colleague, in conjunction with the levels of the anti-anxiety drug found in her systems as support for a "suicide theory", which Mr Davis said had not been investigated by the police.

However he made it clear that the defence considered the suicide theory to be just that - a theory - and not a case.

"We don't set out to prove there was a suicide," Mr Davis said.

"All we say is when you look at the evidence, you have the autopsy report unable to identify the cause of death, but points to drug toxicity...."

Mr Davis was interrupted by Justice Applegarth to clarify what he was saying.

"I say that's what you should take from the report," Mr Davis said, adding again that it pointed to not being able to rule out a drug overdose.

In response Justice Applegarth said a "fair reading" of the report concluded there was "insufficient evidence" because of the level of decomposition to pinpoint a cause of death, however there were other causes of death which could not be ruled out, which included suffocation.

When giving his submission for the prosecution, Mr Boyle, said suffocation and smothering were two causes of death which also couldn't be ruled out, as their expert advice was that both caused soft tissue damage, which may not have been seen given the level of decomposition.

Mr Davis said there was no evidence of either suffocation or smothering as a full CAT scan from "head to toe" had been taken of Mrs Baden-Clay's body and "the most that can be discerned from that is a chipped tooth".

Witness

Mr Davis tendered the affidavit of a man who said he saw a woman, who Mr Davis said was described in a way which "very much fit" Mrs Baden-Clay's description, walking down Boscombe Road in Brookfield at 5:30am on April 20, the morning she was reported as missing, wearing a purple top and 'bike pants'.

Mr Davis said the man thought it unusual to see a woman walking alone that early, in the dark of an Autumn morning and had told police that while she "seemed ok" but "may have been in some difficulty, perhaps".

He said the autopsy report noted Mrs Baden-Clay was wearing a purple singlet which had a bra incorporated in it, sports pants and a light coloured jumper when she was found on April 30, 10 days after she was reported missing.

But Mr Boyle said it was a "non-descript" description of a person and it was a "fairly long bow" to conclude the woman was Mrs Baden-Clay.

Blood in the car

In his submission, Mr Boyle mentioned a small amount of blood found in the Baden-Clay's newly leased vehicle.

"If it is her blood, being found in that position and in that quantity does point to a theory she was moved while bleeding in that car," Mr Boyle said.

"There's no other explanation former blood to be in that position in the car is another way of putting it, particularly when it was only leased eight weeks before."

The court

Mr Baden-Clay was not in court, but his sister, Olivia Walton, was.

Ms Walton sat at the front of the public gallery, surrounded by supporters.

In stark contrast to her demeanour in June, when her brother first applied for bail, Ms Walton appeared relaxed, smiling and talking with her friends ahead of the hearing.

But when Justice Applegarth entered the room and the court was called to order, she sat stony faced and appeared to be listening intently while her friends took notes on the evidence both the defence and prosecution were submitting.